A class action lawsuit (Case #08CV5874) against long-term skilled nursing corporation Extendicare and its 10 facilities in the state of Minnesota. [see list by city at end of release] was just filed in United States District Court, District of Minnesota, in Minneapolis.

Laura Bernstein vs. Extendicare Health Services, Inc. and Extendicare Homes, Inc. was filed on behalf of Bernstein and all residents who lived in a Minnesota Extendicare facility from Oct. 29, 2002 through Oct. 29, 2008.

The complaint alleges that Extendicare violates the Minnesota Prevention of Consumer Fraud Act by engaging in false or deceptive advertising designed to lure elderly and infirm individuals into believing that they will get the care they need. The complaint contends that in spite of the claims made on Extendicare’s websites, in its brochures, and in other promotional materials, it is, in fact, cheating its residents and misrepresenting itself to prospective residents.

“Extendicare facilities are consistently cited by the Minnesota Department of Health Services for being in violation of applicable laws and regulations that result in substandard care for residents and violates their rights,” says Minneapolis plaintiff attorney Gale D. Pearson of Pearson, Randall, Schumacher & LaBore. “Yet Extendicare’s promotional materials claim that the company offers high-quality, skilled nursing care services and that it maintains quality standards above government regulations.”

The complaint points to Extendicare’s “Green Flag Policy” and its “24/7 Extendicare Admission Policy” to demonstrate Extendicare’s “profit over people” actions. This policy is comprised of three lists: “Green Flag,” “Yellow Flag,” and “Red Flag.” Various medical conditions are attributed to each list.

In the long-term care and nursing care industry the admissions and initial assessment process is one of the most important functions a facility performs. This process determines whether a facility can safely admit and provide adequate care to a resident given the severity of the resident’s medical condition; the acuity level of residents already in the facility, and the facility’s available resources, including quantity and quality of staff and available monetary resources.

The complaint alleges that Extendicare’s policy is that anyone who shows up with one of the serious medical conditions on the “Green Flag” list qualifies for “Automatic Admissions/Always Yes Immediately.” This policy does not take into account whether the facility is able to meet the resident’s needs or the needs of the residents already residing in the facility. In fact, regardless of the list the prospective resident’s medical condition puts him on, the only way he can be denied admittance is by an area vice president who is not even on site.

“I don’t believe an area vice president who isn’t even onsite could possibly know if the local facility was able to handle the needs of the patient or if the patient should be in a hospital or another acute care facility,” says Pearson. “It seems to me that the emphasis is on increasing the census in order to increase the profits, regardless of whether the prospective patient needed care the facility couldn’t give or if he were a felon or even a sex offender.”

The complaint also alleges that the corporate-mandated admissions contract given to incoming residents, and which they must sign to be admitted, violates Minnesota law. The contract includes a provision that says that residents agree to limit Extendicare’s liability in personal injuries or in loss of personal property. Minnesota law (§144.6501, subd.2) expressly says that a nursing home’s admission contract cannot include such a waiver and that it may not include any provision which is deceptive, unlawful, or unenforceable under state or federal law.

Extendicare’s problems seem to range across the country. A July 27, 2008 article in theMilwaukee Journal-Sentinel reported that Extendicare owns 26 nursing homes in Wisconsin. Twenty of them have been cited for at least one serious care violation in the past three years. The article also reports that in 2005, Extendicare paid $2.3 million to Wisconsin in a civil settlement over serious nursing home violations arising from the 2003 death of a resident. Its Sun Prairie home, Willows Nursing & Rehabilitation, was cited for poor care after two residents died. Willows paid $198,045 in state and federal fines; it also is on the federal list of the worst homes in the country.

Extendicare is facing a similar class action lawsuit in Washington. That suit was brought by The Garcia Law Firm of Long Beach, Calif., and by Stritmatter Kessler Whelan Coluccio of Seattle, Wash., both of whom are co-counsel with Pearson, Randall, Schumacher & LaBore.

“Stephen Garcia was the first attorney to successfully use this strategy to force these long-term skilled nursing companies into changing their ways,” says Pearson. “The settlements he made with companies in California and Oregon resulted in real change, including the appointment of an independent monitor, selected by Garcia, to ensure the nursing homes live up to their agreements. If they don’t, they go back to court.”

Pearson continues, “Everyone in Minnesota knows the work my partner Ken LaBore has done in fighting elder and nursing home abuse. We know that with the powerhouse duo of LaBore and Garcia we can bring desperately needed change to Minnesota’s nursing home industry.”

Extendicare Homes, Inc. is a subsidiary of Extendicare Health Services, Inc. and is the licensee of a number of long-term nursing facilities. In the United States, Extendicare Health Services, Inc., (EHSI), based in Milwaukee, Wisc., is a wholly owned subsidiary of the Canadian company Extendicare Real Estate Investment Trust (Extendicare REIT). The company (symbol: ALC) is listed on the New York Stock Exchange.

Extendicare Health Services, Inc. operates, according to its website, 191 senior care facilities in the United States with approximately 19,200 beds.

For information about the class action suit, contact Stephen M. Garcia at The Garcia Law Firm, (800) 281.8515 .

2004: Received notices of deficiencies and required to submit an acceptable “Plan of Correction” in order to keep state license. A subsequent survey was completed in March 2005 and the State determined the facility “was not in substantial compliance.” Facility was closed November 2005.

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